Previous expert’s draft report did not have to be disclosed where court had already granted permission to rely on a different expert

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Where a claimant had already been granted permission to call an expert, and it later came to light that the claimant had previously instructed a different expert, the High Court refused to impose a condition requiring disclosure of the previous expert’s privileged draft report: Bowman v Thomson [2019] EWHC 269 (QB).

The court endorsed the approach taken in a line of previous authorities that expert shopping should generally be prevented by ordering the disclosure of a previous, rejected, expert’s report as a condition of permitting a change of expert. However, since an undisclosed expert’s report will be subject to litigation privilege, and the court cannot override that privilege, the court cautioned that such a condition should only be imposed if there is a principled way to do so – not merely by attaching a condition to a general case management order or varying an order previously made.

While such a condition was not imposed in this case, it highlights that parties who wish to rely on the evidence of one expert, having previously obtained a report from a different expert, will be at risk of having to disclose the earlier expert’s report (whether in draft or final form) as a pre-condition of obtaining permission. Given that risk, parties would be well advised to test a potential expert’s views robustly before a decision is taken to instruct the expert.

In this case there is no reference to a distinction between an advisory expert and an expert instructed for the purpose of proceedings. However, that distinction has been made in previous cases, which suggest that the courts will not normally require privilege to be waived where the report is from an advisory expert only (see for example Edwards Tubb v JD Wetherspoon Plc [2011] EWCA Civ 136, considered here).

Background

The issue arose in the context of a clinical negligence claim against the defendant GP. Before sending a letter of claim in October 2015, the claimant obtained an advisory report from a Mr Reynard, a consultant urological surgeon. Mr Reynard produced a further draft report on causation later that year.

The following year the claimant and his lawyers lost confidence in Mr Reynard as an expert and, in February 2017, instructions were sent to another consultant urological surgeon, Mr Shah. By order dated 15 September 2017 the claimant was granted permission to rely on the expert evidence of three medical experts, including Mr Shah.

By co-incidence the defendant’s solicitors also approached Mr Reynard to ask if he could produce a report for their client. Mr Reynard declined on the ground he had a conflict. From that the defendant rightly inferred that the claimant had previously obtained a report from Mr Reynard and asked the claimant to disclose it. That request was refused on the ground that the report was privileged. The defendant made an application for disclosure of Mr Reynard’s report.

His Honour Judge Roberts dismissed the application on the grounds that the claimant already had permission to rely on the medical evidence of Mr Shah by virtue of the order dated 15 September 2017 and there was no basis for him to revisit that order and impose a condition that the claimant could only rely on Mr Shah’s report if Mr Reynard’s report was disclosed. The defendant appealed.

Decision

The High Court (Mr Justice Dingemans) dismissed the appeal, rejecting the defendant’s submissions that (1) the circuit judge had not applied the relevant principles that show it is undesirable to permit expert shopping and (2) failed to exercise its case management powers to make any order at all, for example by varying the order of 15 September 2017.

The judge reviewed the authorities including Beck v Ministry of Defence [2003] EWCA Civ 1043, Vasiliou v Hajigeorgiou [2005] EWCA Civ 236 and Edwards Tubb (referred to above) on the circumstances when it was appropriate to order disclosure of a privileged report. He noted various points that came out of those cases, including:

Expert shopping is to be discouraged and the court will use its powers to prevent it.

If a party needs court permission to rely on a new expert the court has power to give permission on condition that the previous expert’s report is disclosed. This can include draft reports.

The court will have to consider first whether it actually has the power to impose such a condition. In Vasiliou for example there was no vehicle by which the condition for disclosure could be imposed, as: permission had already been granted to rely on an expert in the relevant field (restaurant valuation); that permission was not specific to the original expert; and it would be unreasonable and disproportionate to require disclosure simply as a condition of an order allowing the second expert to attend the claimant’s premises.

In the present case, the court said, the order of 15 September 2017 clearly gave the claimant permission to rely on the report of the second expert, Mr Shah, and to call him to give evidence without the need for any further order requiring disclosure of the draft expert report from Mr Reynard. Therefore there was, in the court’s judgment, no vehicle for the imposition of such a condition under the existing orders.

The court further rejected the defendant’s submission that it should exercise its discretion under CPR 3.1(7) (power to revoke or vary an order) or CPR 3.1(2)(m) (power to take any other step or make any other order for the purpose of managing the case) to vary the order of 15 September 2017.

It noted that the discretion to vary an order is wide and relevant considerations include whether there has been a material change of circumstances or whether there was a misstatement of the facts on which the order was made. While it was now known that there was a prior report from Mr Reynard – a fact not known at the time the original order was made – this was not, in the court’s judgment, a secure basis on which to vary the order and require disclosure of Mr Reynard’s report. It was pure chance that the report was discovered to have been produced. The court observed that it was open to both parties, had they wished, to seek confirmation from the other before 15 September 2017 as to whether they had prior expert evidence from any other expert. Neither had done so (and, the court commented, it would not be desirable if such questioning became routine).

The court endorsed the approach set out in Vasiliou to balancing the legal privilege available to a party in an expert report with the court’s interest in preventing expert shopping. Under that approach, if there is a principled way in which a means can be identified to order disclosure of a prior privileged report, then disclosure should be ordered. However, it is not permitted to attempt to use general case management powers or vary an order after the event.

Herbert Smith Freehills LLP is authorised and regulated by the Solicitors Regulation Authority.

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